HINMAN v. HARE

HINMAN v. HARE. N. Y. Supreme Court, First District, Chambers; March, 1887. Hew trial; placing cause on calendar.] Where a judgment is reversed on appeal, and a now trial ordered, either party is entitled, as matter of right, to an order placing the cause on the calendar not forthwith, nor for any particular day, the clerk giving it the position to which it may be entitled in its proper order. Motion by the plaintiff for an order to place this cause upon the day calendar for trial, on a particular day. The cause had been once tried, and the judgment for the plaintiff affirmed on appeal to the general term, but reversed by the court of appeals, and a new trial ordered. Both parties had, since the filing of remittitur, noticed the cause for trial and it was now on the general calendar. Haley Fiske (Arnoux Ritch & Woodford, attorneys), for the plaintiff, and the motion. Nash dk Kingsford, for the defendant, opposed. [MAJORITY — Patterson, J.] Patterson, J. I have no discretionary power on this application, but under the well settled rule of this court the plaintiff is entitled as matter of right to have the cause placed on the day calendar, not forthwith, or for any particular day, but the clerk gives it the position to which it may be entitled in its proper order. This motion is therefore granted without prejudice to any application the defendant may make to the justice presiding at the circuit to postpone the trial. The order entered upon this decision, directed that the cause be “ placed on the day calendar at circuit for trial.”